Patentee’s Obligation to License on FRAND Terms Did Not Preclude ITC Exclusion Order

Following an evidentiary hearing, the ALJ found that complainants' mobile communications patents were not unenforceable and rejected respondent's argument that complainants' FRAND obligations to ETSI precluded them from seeking an exclusion order. "[I]f the ITC were precluded from performing its mandate as set forth in the authorizing statute, an infringing party could, by making unrealistic counter-offers to the patent holder, while claiming that such counter-offers more accurately reflect FRAND than the offers proposed by the patent holder, hold up or frustrate Section 337 investigations. . . . [T]he evidence does not support [respondent's] allegation that [complainants] failed to offer [respondent] licenses to [complainants'] declared-essential patents on FRAND terms. . . . Remarkably . . . [respondent] has not shown that, as a member to ETSI, it never availed itself to the [mediation] process and procedures of the ETSI. . . ."

Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-TA-794 (ITC October 3, 2012, Order) (Gildea, ALJ).